Virtual Justice: Second Class Justice?

Court systems that have adopted technology at great speed during the pandemic, now need to decide what stays and what goes in the new normal. There are wider questions about whether the changes made will make further change easier and quicker.

For example, there has recently been considerable media interest related to the Senior Judiciary in England making clear they see a future for artificial intelligence being deployed to resolve disputes in the not too distant future. This would involve machines learning patterns and processes and thereafter consistently applying the same result for particular issues.

This is perhaps a classic example of change upsetting us. Some of us might immediately recoil against the idea of machines making decisions about disputes but it does seem that – particularly in low value disputes and where there is an appeal to a human judge- this type of system is being successfully deployed in other parts of the world, and also to adjudicate disputes in certain online communities.

But while we have to remember that we may just be opposed to change because it is different, not every new development is for the better. Our experience in Scotland has been that justice can be successfully delivered virtually. Court hearings, mediations and arbitrations have all been able to take place successfully. However, just because they can be delivered virtually does not mean they should be or that is the optimum.

In our judgment it is desirable that contentious matters should generally still be argued in person (or a party in a litigation have the opportunity to request that), particularly when there are complex legal principles to be discussed or argued, or the credibility or reliability of a witness is to be assessed. In mediation, the ability to engage in person is often important for unlocking the position between principals.

However, that is not to say that all pandemic changes should be reversed. Court scheduling, particularly in many Sheriff Courts, has been much more efficient with the use of technology. There are also procedural hearings where a conference call or video conference, is far more cost and time efficient for clients and advisors than waiting at length physically in Court; and indeed cases where appropriate email correspondence removes the need for any hearing at all. Lodging documents electronically makes lots of sense. Many of these matters were probably overdue for change.

The key question to be answered though are what are the overriding principles that should guide resolution of disputes? Simply cost efficiency or what the art of the possible is? Or also ensuring quality of debate and decision making? Is the balance between these factors different in different type of litigation (for example, family disputes over children against corporate disputes)? Society as well as the legal profession will have to come to a view on these issues.

It seems in any event likely that there will be further significant technological change in the resolution of disputes over the next decade. We are confident that humans will still be required to advise, and sometimes be present, particularly in complex cases. Meantime, we continue to guide our clients through the resolution of their disputes in a rapidly changing world.

Contact our Dispute Resolution Solicitors Edinburgh, Wick and Aberdeen, Scotland

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This briefing note is current as at 31 August 2021 and is our understanding of the position described at that date. Legal advice ought to be taken before relying on its terms (particularly to ensure the law has not changed).